from the any-means-necessary dept

We already find the concept of "secondary liability" when it comes to copyright troubling enough. It's worrisome when a third party who had no direct involvement in the actual infringement can be blamed for it. Yet, in the legacy entertainment industry's insane infatuation with stopping all infringement, they keep going further up the chain, past secondary liability into tertiary or possibly even quaternary liability -- blaming those further and further removed from the actual infringement. That includes going after companies like ad providers and search engines -- but also, apparently, it includes going after registrars. We've seen some of this recently in various attempts to target registrars, but a ruling in Germany is hugely troubling, finding a registrar guilty because a site registered through that registrar was apparently used by someone to infringe.

Let's be clear just how far this is removed from the actual infringement. The infringement, if it actually existed, was between two or more individuals, who shared a torrent of Robin Thicke's album Blurred Lines. Once removed from that was the torrent site H33T, which did not actually engage in any infringement, but hosted the torrent (which, again, is not the actually infringing file). Another layer removed from that would be H33T's web host. And then we go one more layer up, and we finally get to Key-Systems, the registrar, which was ordered by a court to stop the infringement all those many layers down. And, of course, as the registrar, its only option was to yank the DNS entry, which it did, shutting down the entire site, even if everything else on the site was legal.

It's no secret that Germany seems to be much more open to ridiculous secondary liability claims, leading to some bizarre and dangerous rulings that will stifle innovation. And this seems to fit right in with those in the past. Key-Systems' lawyer agreed, telling TorrentFreak that the ruling "made no legal sense" and had "dire consequences for the kind of services German registrars can provide."

Universal Music, which brought the lawsuit, defended the outcome with some bizarre logic in a comment to TorrentFreak as well. First, a lawyer for Universal claimed that since H33T was a domain reseller, that tied the two companies together, but that makes no sense, especially since the issue of the torrent is totally unrelated to reselling domain names. Just because the companies have a relationship, doesn't make one liable for the others' totally unrelated actions. But then there's this absolutely insane logic:

Bruess says at this point it became “quite clear” that as “the only party involved who could stop the infringement”, Key-Systems needed to take action. That involved Key-Systems effectively disabling the whole domain, but Bruess says that was not his company’s request. They had only one requirement – to disable access to a single URL.

“In essence, Rasch Legal had not asked Key-Systems to close down h33t.com, but to stop one single torrent from being communicated to the public through h33t and h33t’s tracker,” he explains.

But, let's take that ridiculous logic one step further. Say, for example, that the registrar was unable to stop this particular torrent from being shared? Do we move one step up the ladder? They could, say, go to VeriSign, and demand they take down the entire .com database, right? Because that would be "the only party who could stop the infringement" at that point, right? And, even though they just wanted that single torrent taken down, if the only way VeriSign can do it is to nuke most of the internet, well, that's perfectly reasonable, right?

The Obi-Wan Doctrine

The Obi-Wan Doctrine clearly indicates that in the event only one entity can solve the problem of the horrible business model the plaintiff chose upon itself, then that entity -- despite not being involved, and miles away -- must involve themselves to their own eventual death.

This is like suing Saudi Arabia because one of the oil companies there sold oil to shell which is where some guy put fuel in his car and then used that fuel to flee from police. It's about that stupid anyway.

Re: Re:

It might be a completely ridiculous ruling, but at least the domain owner got to argue the case in court, and (presumably) can appeal the verdict and get it overturned. That's the way the law is supposed to work.

It's probably worse here in the states, where the feds seized Dajaz1.com without so much as a warrant, then despite all the negative publicity, stonewalled for over a year before finally 'noticing' that the site was completely legal.

Curious

At some point if countries keep rolling out stupid rulings such as this, or some of the French attacks on Google, can these companies simply start blocking said countries? While I'm sure the domain registrar or Google would be unhappy to lose the corresponding business it still seems less painful and I would frankly love to see the reactions of the governments when large portions of the net simply went away.

The logic of the ruling (I live in Germany and speak German at near-native level) seems to be—by analogy—that the surest way to fix a leaky roof is to burn down the house. It is also unfortunate that this matter landed in Saarbrücken. If I had to wager, I would guess that this matter is the first music industry matter to have been adjudicated in Saarbrücken. If, however, this matter had landed in Berlin or Hamburg, I would be willing to wager that another ruling would have been made.

This ruling makes a mockery of helping. The respondent did not act hostilely to the petitioner when it requested voluntary injunctive relief from the respondent, but tried to help the petitioner by providing it with the information it needed to take legal action against the infringer itself. I find it hard to imagine that this would have been a contributory factor against the respondent in a larger city. In Saarbrücken, however, the respondent was rewarded with an injunction, court fees, and a bizarre ruling against it.

Re: What comes around....

Why sue the artist, when they can take the vast majority of the profits from their music due to one-sided contracts and give them just enough to survive on and continue to make the label even more money?

Would Universal be ok with being held liable for crimes perpetrated by their signed artists? Would they accept being liable for tax evasions of one of the companies they buy supplies from? I guess not. Then why are they pushing for secondary/tertiary/quaternary liability?

this, like 99% of verdicts in Internet and it's related cases are ruled on by judges who haven't got a damn clue what is involved, how it works or what the hell they are talking about! i seriously hope there is an appeal because as i have said many times, the entertainment industries will carry on until they have completely fucked up the whole Internet or have complete control of it, deciding what can be done etc and where. they are not bothered which of the two options happen because the dopey fuckers still think that people are going to run back to the high street stores as fast as their legs can take them!!

moronic

"But, let's take that ridiculous logic one step further. Say, for example, that the registrar was unable to stop this particular torrent from being shared? Do we move one step up the ladder? They could, say, go to VeriSign, and demand they take down the entire .com database, right?"

You get points for trying for outrage, but you fail so badly that it hurts.

The registrar, in removing the domain from service, makes the file unavailable via that URL, plain and simple. It doesn't and never would go any further than that. Of course, if the registrar failed to remove the domain from action (and aided the pirates by knowingly keeping it active), then perhaps action would be taken against the registrar by ICANN, who have shut down a number of registrars in the last little while for non-compliance issues.

There is no "take down the whole .com" here, there isn't even a logical way to end up there. Stop waving your arms around on this one, you look like you are losing it, Glenn Beck style.

Imagine this

1. Jane registers jane.com with SuperDooperDomains.2. SuperDooperDomains is strongly against copyright infringement.3. Jane puts up a website that has only legal content.4. Some time passes.5. Evil Jane changes her website, while twirling her mustache, and starts hosting copyright infringing content.6. Now SuperDooperDomains is suddenly liable through no action or intent of it's own. Furthermore SuperDooperDomains is strongly against copyright infringement.

This seems insane.

Wouldn't it be a reasonable, well considered and fair solution, in the interest of justice, to put the liability onto Google instead? After all, it's obviously Google's fault.

Re:

Re:

> It might be a completely ridiculous ruling, but at least the domain owner got to argue the case in court, and (presumably) can appeal the verdict and get it overturned. That's the way the law is supposed to work.

I disagree. Something like this should be laughed out of court.

> It's probably worse here in the states, where the feds seized Dajaz1.com....

Yes, there are crazier things happening throughout the world, but making the comparison this way you are implying that we shouldn't worry too much about it. In effect you are setting the threshold for concern on the wrong end of the scale.

The baseline for reasonableness should be not fucking crazy; we should not be comparing events (or by extension philosophies) on the basis of "well, worse things have happened, so this is not that big of a deal".

Whether or not you believe that, the tone of your post strongly implies that "this is not that big of a deal".

Go all the way to the source

I believe that Universal Music should have been a target of the lawsuit, since they were the ones to originially produce the content used in the infringement. Without their participation, however far removed, the infringement could not have taken place.

The plaintiff would like to consolidate the following defendants in this claim:

- happyp1r4te for copying the work- Alienware for making the computer allowing the work to be copied- Intel for making the CPU that changed the work into a readily piratable form- Hitachi for making the monitor displaying the progress of the infringment- Logitech for making the keyboard permitting the infringer to hack infringing codes- Realtek Semiconductor for enabling the computer to transmit the infringing work- Belkin for making the internet cable carrying the infringing content- LG for making the powerstrip keeping the computer on while it was infringing- Linksys for making the router enabling the infringment to be transmitted to the internet- Comcast for selling infringment-enabling services ("internet access")- AT&T for the internet routers that carried the infringement- GoDaddy for providing the domain name on which the infringement was hosted- Verisign for allowing GoDaddy to continue to sell services to infringers- IANA for not revoking Verisign's right to use ".com" under which the infringement was hosted- Adobe for selling "dreamweaver" without proper safe guards in place to prevent "hot links" to the infringing works despite this simple suggested modification to their software!- Google (of course) for directing users to infringing works- The US Intelligence Agencies (NSA, FBI, CIA, DHS, ICE, CBP, and the NYPD) for not stepping in to stop the infringement- The Poetry Foundation for promulgating the works of one "William Shakespeare" (presumed deceased) which allowed the infringer to clearly articulate the infringement- God for imbuing "happyp1r4te" with the spark of life after knowing infringment would be taking place

I hereby attest in good faith that we have named all responsible parties, however we reserve the right to amend this list as new details come to light.

Gotta try this

Let's invent an algorithm for generating a sequence of random fallback tracker URLs, similar to the algorithms for C&C URLs for botnets --- but let's make sure that it involves using some information from all/any of the *AAs websites.

Then, by the same logic, the court would have to ask for those websites to be similarly expunged. This outcome might "help" the court understand that such a ruling is not a good idea...

Re: moronic

Re: moronic

There's no logical way to end up at VeriSign (whose only way to take down the offending link might well be to take down the entirety of .com), you're right about that.

But there's no logical way to end up at the registrar (whose only way to take down the offending link was to take down the whole domain), either - and yet that's where this already ended up. So why shouldn't we now consider the scenario where the other illogical thing might happen?